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2008 DIGILAW 1214 (PNJ)

Dimple v. State Of Punjab

2008-07-11

ADARSH KUMAR GOEL, S.D.ANAND

body2008
Judgment S.D.Anand, J. 1. Appellants Rajinder Kumar and Dimple (along with three others namely, Ashwani Kumar, Shamma and Madhu Bala) were tried on charges under Sections 498-A, 302, read with Section 149 IPC, 304-B and 506 IPC ( in case FIR No. 30 dated 1.4.1998, Police Station Division No. 2, Ludhiana). 2. Appellants Rajinder Kumar and Dimple were convicted under Section 302 IPC for having committed the murder of Sunita Rani in furtherance of their common intention; while the above three persons were acquitted. 3. Sunita Rani was married to appellant Rajinder Kumar about 1-1-1/2 years prior to her death. Appellant Dimple is wife of Ashwani Kumar alias Sonu, a brother of Rajinder Kumar. Ashwani Kumar earned a verdict of acquittal. Sunita Rani used to resent the growing intimacy as between Rajinder Kumar and Dimple appellant. Rajinder Kumar would not care for her and would tell her that he would not refrain from continuing the relationship with Sunita Rani. Vide Ex. PL, Sunita Rani informed the police (in the form of a dying declaration) that Rajinder Kumar poured kerosene oil upon her while appellant Dimple set her afire by lighting a match stick. Though Ex. PL attributes role to acquitted as well, we do not feel called upon to indicate that part of the statement in view of the fact that the acquittal of Ashwani Kumar, Shamma and Madhu Bala has attained finality inasmuch as the State did not challenge it. 4. Learned Trial Judge placed reliance upon Ex. PL and recorded the impugned finding of conviction. 5. As would be apparent from the testimony on oath of PW- 2 Dr. Deepak Bhatti, Senior Resident Plastic Surgery, C.M.C. & Hospital, Ludhiana who treated Sunita Rani on her admission in hospital on 31.3.1998, Sunita Rani came to the hospital with 100% burns. He certified (vide opinion Ex. PD/1 on police plea Ex. PD) that Sunita Rani was fit to make a statement. That certification was issued by him at 11.20 P.M. on 31.3.1998. It is in his testimony that "both the hands of Sunita were burnt including finger tips and thumb. .......On the basis of verbal response we opined that the patient was fit to make the statement". 6. Thus, about little less than one hour intervened her hospitalisation and issuance of certification about her fitness to make a statement. It is in his testimony that "both the hands of Sunita were burnt including finger tips and thumb. .......On the basis of verbal response we opined that the patient was fit to make the statement". 6. Thus, about little less than one hour intervened her hospitalisation and issuance of certification about her fitness to make a statement. At this stage, it would be appropriate to notice that PW- 3 Dr. Sudhir Sidhu, Resident, Department of Surgery, C.M.C. Hospital, Ludhiana also testified, on the basis of the patient record Ex. PE, that Sunita Rani had 100% burns at the time of admission and that "the entire body of Sunita Rani including her hands, finger tips and thumbs have burn injuries and it was a case of 100% burns." 7. It is in the testimony of Investigating Officer that "there are about 8-10 Executive Magistrate at Ludhiana. There are also about 10-15 JMICs at Ludhiana." The Investigating Officer did not take any steps to get the dying declaration recorded by a Magistrate. He conceded that he did not try to contact any Executive Magistrate or Judicial Magistrate on the night of the occurrence. At the trial, he did not offer any explanation why did he not take steps to get the dying declaration recorded by a Magistrate. His statement to the effect that "the Doctor remained present throughout recording the statement of the patient by me" is contradictory to that of PW-2 Dr. Deepak Bhatti who testified that "I was not present when the statement of Sunita was recorded". Apart therefrom, it is in the statement of none else or other than the Investigating Officer himself that Ex. PL is in hand of ASI Surat Singh. He also conceded that endorsement Ex. PL/1 appearing thereon is also in the hand of ASI Surat Singh. However, ASI Surat Singh gave a lie to that statement by categorically averring that "the writing work was done by Inspector Naveen Kumar". 8. Furthermore, we find that dying declaration Ex. PL purports to bear the thumb impression of maker thereof i.e. Sunita Rani. In view of the categorical testimony of PW-2 Dr. Deepak Bhatti and PW-3 Dr. Sudhir Sidhu to the effect that her entire body including both her hands including finger tips and thumbs have burns injuries, it is not understandable how could a thumb impression of Sunita Rani be obtained on it. 9. In view of the categorical testimony of PW-2 Dr. Deepak Bhatti and PW-3 Dr. Sudhir Sidhu to the effect that her entire body including both her hands including finger tips and thumbs have burns injuries, it is not understandable how could a thumb impression of Sunita Rani be obtained on it. 9. We find, on a perusal of the above facts and circumstances of the case, that the recording of dying declaration Ex. PK is not free from doubt. 10. The parents of the deceased lady, who would have been best circumstanced to depose about the circumstances in the context of the dowry-related torture (if any), were examined at the trial as PW-6 Pushpa Devi and PW-7 Budh Raj. Both of them did not support the prosecution plea. PW-6 Pushpa Rani categorically stated that appellants never maltreated Sunita Rani prior to her death nor did Sunita Rani ever complain of any maltreatment at their hands during her life time. In the course of cross-examination as well, she claimed having been told that Sunita Rani sustained injuries while preparing meals. Likewise, PW-7 Budh Raj (father of deceased lady), who purported to be a signatory to Ex. PL, denied that any such statement had been recorded in his presence. In the context, he averred that his signatures were obtained by the police on some papers. The other purported signatory i.e. Harbans Lal was given up by the prosecution as unnecessary. 11. The present, thus, is a case in which it is proved that the Investigating Officer did not take any steps to procure the presence of a Magistrate to get the dying declaration of deceased Sunita Rani recorded inspite of the fact that there were a number of Magistrates posted at Ludhiana itself where the deceased was hospitalised. The testimony of Investigating Officer that the Medical Officer (who certified the fitness of deceased to make a statement) remained present throughout the recording of the statement is contradicted by that Medical Officer who denied having remained present during the period the dying declaration was being recorded. Out of two purported (attesting) signatories of the dying declaration, one was given up as unnecessary; while the other who is none else or other than father of the deceased lady denied that any declaration of Sunita Rani had been recorded in his presence. The obtaining of thumb impression of the maker of Ex. Out of two purported (attesting) signatories of the dying declaration, one was given up as unnecessary; while the other who is none else or other than father of the deceased lady denied that any declaration of Sunita Rani had been recorded in his presence. The obtaining of thumb impression of the maker of Ex. PL on it is also shrouded in mystery inasmuch as two Medical Officers (PW-2 Dr. Deepak Bhatti and PW-3 Dr. Sudhir Sidhu), who treated the deceased lady, were categorical that her entire body including her hands, finger tips and thumbs were completely burnt. 12. In the light of afore-mentioned discussion, we find that prosecution had not been able to prove the charge against the appellants beyond reasonable doubt. The appeal shall stand allowed. The impugned finding of conviction against the appellants shall stand set aside. The appellants shall stand acquitted of the charges.